Court Says FBI Agent's Wrong Checkmark Put Woman On No Fly List, Barred Her From The US For 10 Years

from the ouch dept

Fri, Feb 7th 2014 5:28am — Mike Masnick

We've been covering the case of Rahinah Ibrahim for a little while now. She's the Stanford PhD student who was wrongfully placed on the no fly list -- something that pretty much everyone admitted early on -- but because of that her student visa to the US was pulled, and every attempt she made to come back was rejected, leaving her unable to come back to this country for nearly 10 years. As we noted last month, it seemed clear that Judge William Alsup had ruled that the feds needed to remove her from the no fly list and any other terrorist watch lists, but it was a little unclear, since the full ruling remained under seal. That ruling has now been released in redacted form, and is well worth reading. Not only does it highlight massive bureaucratic bungling over a ten-year period, it also shows how disingenuous and dishonest the DOJ has been in handling the entire case -- even to the point of promising not to argue "state secrets" to kill the case, and then (of course) claiming "state secrets" and trying to kill the case just a few weeks later. Judge Alsup appears somewhat limited in what he can do in response to all of this for procedural reasons, but he makes it clear that he's not pleased about all of this and orders the government to confirm that Ibrahim has been fully removed from the various terrorist databases and lists, as the government has flatly admitted that they don't believe she poses any threat to national security.

In fact, the ruling highlights that this is all due to one FBI agent totally fucking things up back in 2004 -- and not even realizing he had done so until his deposition a few months ago. Alsup makes clear (and it seems everyone agrees) that the FBI agent, Kevin Michael Kelley didn't screw up maliciously, but he simply misunderstood the directions in filling out the form:

Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's no-fly list [redacted]. He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the [very long redaction]. He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, "It is recommended the subject NOT be entered into the following selected terrorist screening databases."

And from that one screwup, basically a bureaucratic mess appears to have followed, and even if she was removed from that list (as is suggested elsewhere), once her name got into a series of connected databases, she effectively became toxic, and no one would allow her back into the US. So even though everyone now admits that she posed no threat to national security, when she applied for a visa to come back to the US, not only was it rejected, but the reason for the rejection was given as the code for "terrorist activities" (8 USC 1182 (a)(3)(B)) -- and to make matters even more insane, someone at the State Department helpfully scribbled "terrorist" on the form that was sent to her denying her entry.

Judge Alsup notes just how incredibly disruptive this whole situation has been on Ibrahim's life, noting clearly that this has ended up depriving her of the right to travel, the right to be free from incarceration and the right to be free from stigma and humiliation of a public denial of boarding and incarceration. And while he orders the various databases to be cleansed of bogus information about Ibrahim, there's also a weird part of the order that is redacted, in that she's ordered to be told... something.

Given the Kafkaesque treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [redacted] (always subject, of course, to future developments and evidence that might [redacted]). This relief is appropriate and warranted because of the confusion generated by the government’s own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

It is true, as the government asserts as part of its ripeness position, that she cannot fly to the United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the day will come when all hurdles are cleared and she can fly back to our country. The government’s legitimate interest in keeping secret the composition of the no-fly list should yield, on the facts of this case, to a particularized remedy isolated by this order only to someone even the government concludes poses no threat to the United States. Everyone else in this case knows it. As a matter of remedy, she should be told that [redacted].

Given that she should be told something, it seems utterly bizarre that what she should be told must be redacted.

The victory here is the first legal success in getting someone off of the no fly list, but it likely has limited use elsewhere, unfortunately. The case specifics are pretty narrow, and Judge Alsup makes it pretty clear that the government has a right to keep secret databases in which it forbids people from boarding airplanes. He notes that other cases will come along to take on those other issues, and we're sure to pay attention to them as they come up.

Ibraruling (PDF)Ibraruling (Text)

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Filed Under: fbi, no fly list, rahinah ibrahim, william alsup

49 Comments

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Violynne (profile), 7 Feb 2014 @ 3:51am

If she wasn't a terrorist in 2004...

Jesting aside, let's hope the DOJ and the rest of the bureaucracy has a nice retirement fund set up for her to ease her obvious suffering of 10 years.

And no, they're not allowed to use Kickstarter to acquire the funds.
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Ninja (profile), 7 Feb 2014 @ 5:46am

A no-fly list for people under investigation or being prosecuted might make some sense but a secret thing based on assumptions pulled out of some lunatics arses like the current setup is a no go. I'm starting to think that to be allowed into the DOJ and branches you must be some sort of psychopath/sociopath (ie: hand in your psychiatric files confirming you are a loon or you won't be allowed in).
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JWW (profile), 7 Feb 2014 @ 5:51am

I hope
I sure hope she uses her free speech rights to tell us what they have to tell her after they tell it to her.
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Quiet Lurcker, 7 Feb 2014 @ 6:00am

Consequences
An employee messed up big-time ten years ago and they didn't notice the mistake until this year?!

And the attempts to get off the no-fly list didn't trigger someone to to at least consider the possibility of error in all that time?

And no significant penalties OR remedies assessed against the government by the court???

And cynicism about the government is still a wonder to lots of people.

Sigh.
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Anonymous Coward, 7 Feb 2014 @ 6:06am

And people wonder why foreigners are wary of going to the USA.
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Anonymous Coward, 7 Feb 2014 @ 6:10am

I imagine they were told to tell her why she was being nominated for the [redacted] list to begin with and mistakenly ended up on the no-fly list. Apparently they don't want the names of the various lists to be bruited about.
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ChurchHatesTucker (profile), 7 Feb 2014 @ 6:25am

Re: I hope
They'll redact it for National Security reasons.
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halley (profile), 7 Feb 2014 @ 6:28am

Typo:

...this is all due to one FBI agent totally fucking things up...
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madasahatter (profile), 7 Feb 2014 @ 6:39am

A idea for a novel
Franz Kafka were are you? We need you to write a novel about this. You are the only one who can sense of this story.
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Anonymous Coward, 7 Feb 2014 @ 6:40am

It seems obvious to me that the reason the DOJ fought this so hard is that this is the first challenge to the no-fly list. Now more people will see this victory and also challenge the no-fly list. Also this means the DOJ has to admit it made a mistake, not a good precedent for them.
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DannyB (profile), 7 Feb 2014 @ 6:44am

Re:
Being a psychopath/sociopath is a requirement for DOJ job applicants. The DOJ also has a maximum IQ requirement.* The DOJ strongly favors applicants who are bureaucrats and good at office politics and brown nosing.

Being a bully with an attitude of self importance and unchecked power is a job requirement for police departments. Along with that maximum IQ requirement.*

*the maximum IQ requirement is there to protect the DOJ from hiring people having an IQ above 105 who could be disruptive.
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DannyB (profile), 7 Feb 2014 @ 6:45am

Re: A idea for a novel
You mean a novel like 1984?
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Anonymous Coward, 7 Feb 2014 @ 6:46am

Is anyone else sick and tired of all this state secrets redacted bullshit , for fuck sakes why does everything that comes out about these Un-Constitutional searches, data bases, court rulings. have to remain hidden.
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edpo, 7 Feb 2014 @ 6:54am

Agent Kelley
This moron's actions and the results are exactly why so much unchecked power cannot be entrusted to the Executive Branch. They get more wrong than right, frankly, and have missed the first WTC boming, 9/11, Boston, London, Madris, the hacks on Target, TJMaxx, Neiman Marcus, Newegg, etc.

The FBI, CIA, NSA et al cannot be trusted to do anything more than fuck up our social contract and violate the Constitution regularly in the process. They're worse than the drug cartels because at least the latter offer services and products that are at least somewhat checked by the free market.

The executive branch of the federal government is a joke nowadays.
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Anonymous Coward, 7 Feb 2014 @ 6:58am

Re:
No it's all about the federal government having the power to do such things without scrutiny.
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halley (profile), 7 Feb 2014 @ 7:00am

Re: Re:
No really, that phrase exists in the article, with a typo. I'm not commenting on the content. It is a choice soundbite though.
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Spike (profile), 7 Feb 2014 @ 7:03am

And here they let that popular preteen arousing moron pop star singer back into the U.S. even though he has a laundry list of charges pending?

If you want people to respect the law, starting with equality by removing the FPA (famous persons act) would help.

Crack your ex girlfriends gmail account and post her nudes online, get 6 months probation, if that.
Do it to a celebrity or politician, get 10+ years in prison from a laundry list of CFAA charges.

Do nothing, get put on no fly list, barred from U.S for 10 years.
Have a DUI from 30 years ago, denied entry into the U.S.
Have felony charges pending for vandalism, DUI and speed racing charges, well hello there, how are you? Move along, have a nice day.

Fuck law, its broken.
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art guerrilla (profile), 7 Feb 2014 @ 7:09am

Re: I hope
"I sure hope she uses her free speech rights to tell us what they have to tell her after they tell it to her."

which then proceeds to get her put on the no-fly list...
that's some catch, that catch 22 ! ! !
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jupiterkansas (profile), 7 Feb 2014 @ 7:12am

Are you sure her name wasn't Harry Buttle?
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Anonymous Coward, 7 Feb 2014 @ 7:13am

now, someone please enlighten us to what would happen to and what would the outcome be if mr or mrs joe public filled in any government form incorrectly? even if the form filling was done because the information was mis-understood? or the accompanying examples were misunderstood?
exactly! they would have been given the high jump! they would have been persecuted for the rest of their lives! they definitely wouldn't have been given the opportunity to correct the mistakes!
why then after all this time, does the government just stick it's hand up, appologise profusely, throw a few thousand bucks at her and give her a free to anywhere and back as often as wanted for the rest of her life? the reason is, because it's the government. i doubt if the idiot that caused this screw up has even been knuckle-rapped, let alone anything else!
i wonder how he would have felt had it been his or a family member (wife, parents) member in the same position? he caused this person to basically lose 10years of her life, and for what? and these sort of twats are in every government dept you can think of, making these sort of decisions (read fuck ups to others lives!) every day!!
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Anonymous Coward, 7 Feb 2014 @ 7:16am

Is it only me that wonders how many of those forms that agent filled out wrong? I mean, if he did it once, he may have done it again and again, until he either figured out how to fill them, or, stopped.

Worse even, has he filled a form for a terrorist in the opposite way, clearing him for flight, instead of banning him?

Is any part of this system even reliable if it depends so much on "interpretation" of one form?

Just wondering.
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Anonymous Coward, 7 Feb 2014 @ 7:24am

Re:
Umm, having charges pending against someone is a great reason to allow them into the country. It helps make sure they're around to face those charges in court in a timely fashion. Otherwise the case ends up in a legal limbo, extradition might be required, etc.
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Anonymous Coward, 7 Feb 2014 @ 7:25am

Re:
Yeah, that was pretty much my thought on the matter.

How many innocent people are on the no fly list and the other lists, because someone filled out the form wrong when they meant to clear them?

How many suspect people are cleared and not on any lists because someone filled out the form wrong when they meant to flag them?
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Vidiot (profile), 7 Feb 2014 @ 7:32am

The redacted part, revealed
"...the government is further ordered expressly to tell Dr. Ibrahim [redacted]..."

[... to take a trip down to Best Buy and treat herself to some sweet home entertainment equipment, and put it on the government's tab. After all, we owe her big time.]
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PaulT (profile), 7 Feb 2014 @ 7:33am

Re: Consequences
"the attempts to get off the no-fly list didn't trigger someone to to at least consider the possibility of error in all that time"

Of course not. the computer says "terrorist" so they must be a terrorist. They must have done *something* for the computer to say that!

It's sad when you can look at something like Brazil and think "yep, that's true"...
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zip, 7 Feb 2014 @ 7:46am

Celebrities don't always get preferential treatment -- sometimes the opposite happens. A few years ago US authorities forced went into a red-alert panic and forced a plane down when they discovered that '70s pop star Cat Stevens was aboard. Was it because of his Vietnam war criticism decades earlier? Being an advocate of Palestinian rights? Whatever the reason (or lack of) the Feds are still keeping it secret.
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Anonymous Coward, 7 Feb 2014 @ 8:22am

Since we now know this mistake has been made
Why should we believe that it's only been made once?

And why should we believe that it's never made in the opposite manner?
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Anonymous Coward, 7 Feb 2014 @ 8:26am

Re: The redacted part, revealed
Really? No, more like they should inform her that they will be enforcing 18 U.S.C. � 242 on those within their ranks who are responsible in addition to providing a fair restitution for the damages done over the past decade which should include a fair calculations for lost revenue due to the fact that she was unable to finish her degree on schedule, as well as the offer to cover the cost of continuing her education at a university of her choosing as well as covering the entire cost of the whole litigation process.

A decade of having your rights violated should be worth way more that a big flat screen TV and HiFi stereo system.
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Anonymous Coward, 7 Feb 2014 @ 8:28am

Re:
"if mr or mrs joe public filled in any government form incorrectly? even if the form filling was done because the information was mis-understood? or the accompanying examples were misunderstood?"

You mean like an IRS tax return?
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Anonymous Coward, 7 Feb 2014 @ 8:30am

Re: Re: A idea for a novel
Kafka didn't write 1984. Orwell did.
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rapnel, 7 Feb 2014 @ 8:48am

A logical conclusion
At this point wouldn't it be logical, in the interests of justice, that every name included on the No Fly List be re-qualified and an efficient procedure for challenges be implemented? This case alone proves, beyond a reasonable doubt, that inclusion on the No Fly List is subject to errors. Why would the judge come up so very short?

Isn't something like "better that 10 people go free than to punish an innocent person" applicable? If not then why not?
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Anonymous Coward, 7 Feb 2014 @ 8:52am

Let's suppose, for a second, that someone nefarious got access to these 'no-fly' lists,

Let's continue with this, and suppose that everyone involved in this case happened to be placed ont he 'noy-fly' list for "Terrorism".

So you suppose, for one second, that those people would stay on the 'no-fly' list?

Neither do I.
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Call me Al, 7 Feb 2014 @ 8:56am

Re: A logical conclusion
Exactly. The No Fly List should be examined entry by entry with each name being re-evaluated based on evidence... and nut just that their name appears on another list. Anything else after this would be unacceptable.

A mistake has been made. Where there is one there may be more and therefore it is all suspect until shown to be otherwise.
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Anonymous Coward, 7 Feb 2014 @ 9:20am

Is this the ONLY mistake?
If the difference between ending up on the no-fly list as a terrorist and being on the [redacted] is only a simple checkbox on a form, how many other forms have had the wrong box checked (by mistake or to persecute individuals by a malicious FBI agent, or are we assuming there are none of those out there either?)

Obviously this is the main reason to fight so hard to cover the mistake made 10 years ago, now everyone on the No-Fly list has a credible excuse to file suit to see why they are on the list.

Judge, how can I be sure that I was supposed to be put on the no-fly list and not on the [redacted] list. This is even worse if the [redacted] list is something like the "Friends of America Group" or "Foreign Nationals who support the US" or "Foreign Nationals who should receive preferential treatment"... since it's [redacted] we are left to speculate is the other checkbox a good one or a bad one (if it's a good one what's it doing on the same form as the no-fly list, and if it's a bad one how much worse than the no-fly list is it???
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prolific SOB, 7 Feb 2014 @ 9:32am

Wait:

risk of casualties of a terrorist blowing up NYC subway in Times Square IS greater then blowing up ten+ airliners.

If we allow no-fly bullshit fly, then why there is no "no-ride" list for subways?

And city busses?
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Anonymous Coward, 7 Feb 2014 @ 9:33am

The no fly list has been a farce akin to a government setting up an internet filter to block porn from the net. It is not really blocking porn they are after, it's about being able to block other things that will be put on the list once there is a means to do so and of course what is blocked is always secret and can't be shown the public. So if your political enemy is a thorn he can be taken care of before he gets big.

It's about getting those pesky people it considers thorns in it's side publicly staying home instead of broadcasting it to the world and embarrassing it further. Rahinah Ibrahim is not the first one that has been put on the no fly list either by hook or by crook, which has followed with the DOJ and other agencies refusing to look nor alter the list. It again is very telling that part of it is that the people on the list will not be told. There's another, a pesky professor that is on this list, more because he's a thorn, not because he's involved in terrorism, and it's come up several years ago. Then there are those that some how just manage to get on the list after they leave the US, from which is their home country. This too has come up several times. Their not terrorists, they are embarrassments to the government. The dirty solution is to keep them from coming home.

Rahinah Ibrahim sought information that she be told she was off the list after it was done. As part of an earlier article told here, it was one of her court requests for this case. She wanted notification it was done and notification if it was ever changed again. I am sure the DOJ is horrified that some other person on the list might find out how she did it and go through the same process to get removed again showing that this list isn't about terrorism as much as it's about preventing embarrassments for getting around and spreading the word.
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Anonymous Coward, 7 Feb 2014 @ 9:42am

Evo Morales is in no-fly list since it began (per 60 Minutes).

So is Hernando Calvo Ospina.

There are like 50+ documented cases of toddlers amd newborns being on no-fly list. I am sure, that little checkbox had something to do with it. Nice try.
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Eurobubba (profile), 7 Feb 2014 @ 10:05am

Re:
No, the sequence of events may have been triggered by one individual's fuckup, but human beings are always going to make mistakes. The real issue is that the entire system is deliberately designed to prevent affected individuals from being able to do anything about it, and to keep anyone else from ever even finding out about it. It's the perfect system for ensuring that any mistakes get carved in stone forever.
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Eurobubba (profile), 7 Feb 2014 @ 10:07am

Re: Re: A idea for a novel
Kafkaesque, with Orwellian undertones.
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Anonymous Coward, 7 Feb 2014 @ 10:13am

Response to: Anonymous Coward on Feb 7th, 2014 @ 6:40am
Affirming the right to have a list at all while shunting any chalking l challenge off as an isolated mistake is great for them. They can keep doing what they do and only the few with time, connections, and money have even a prayer if their mistake getting rectified.
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Anonymous Coward, 7 Feb 2014 @ 10:19am

Re: Re:

Being a psychopath/sociopath is a requirement for DOJ job applicants.

Seems about right. Then you can get promoted to Congress. Just ask former FBI undercover agent Michael Grimm.
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krolork (profile), 7 Feb 2014 @ 10:29am

We need a revolution.
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Anonymous Coward, 7 Feb 2014 @ 10:32am

Re: Re: Re:
No it should be...

"...this is all doo..."
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Anonymous Coward, 7 Feb 2014 @ 10:38am

Abuse by checklist...
Sounds like a familiar tale. Hmmm where have I heard about this sort of thing before?
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Anonymous Coward, 7 Feb 2014 @ 10:39am

Re:
Please. Don't give NYPD any ideas.
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Anonymous Coward, 7 Feb 2014 @ 10:41am

Re: Re:
They also don't have a very good record with checklists.

http://www.techdirt.com/articles/20130411/10524522679/former-police-chief-defends-nypds-s top-frisk-program-because-it-has-checklist.shtml
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Anonymous Coward, 7 Feb 2014 @ 10:55am

I wonder how many people were ever waterboarded or maybe killed that were US citizens because someone checked the wrong box.

---------------------------------------------

(name of individual) current status is:

_ US persons with all the constitutional protections afforded to such a individual.

_ Terrorist who has no constitutional protections.

(please check one box only)

WARNING: This record contains Sensitive Security Information that is controlled under 49 CFR parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know" as defined in 49 CFR parts 15 and 1520, except with the written permission of the President of the United States.
Unauthorized release may result in civil penalty or other action.

-------------------------------------------
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Anonymous Coward, 7 Feb 2014 @ 11:12am

I don't think the FBI agent unintentionally made any mistakes on the No-Fly-List forum he filled out. I believe he thought since Rahinah Ibrahim is Dr, she might fly home a teach terrorists how to create biological weapons.

That's my theory. She was probably viewed as a potential enabler of biological terrorism, but the DOJ and FBI don't want to admit that's why she was put on the list, because they have no proof.
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Anonymous Coward, 7 Feb 2014 @ 12:30pm

Re: Re:
Having Visited the US Once, I've seen government form's the US use, they are cheap shoddy things, badly set-out, often repeating themselves, the most memorable (and first form) was the entry document the airline handed them out to be filled by the passengers. The airline announcement accompanying the forms said, Don't Worry if You make a mistake we have lots of spare forms.

(similar purpose forms from other countries are easier to read, easier to fill in and quicker to fill in, and amazingly gather the same information)

I pity US citizens.
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